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OpenMarket: August 2015

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit handed down its much-awaited ruling in Obama v. Klayman, one of several lawsuits challenging the legality of the NSA’s bulk collection of Americans’ telephone records. In 2013, the District Court for D.C. issued a preliminary injunction after it found the plaintiffs were “substantially likely” to show that the NSA was collecting their telephone records in violation of the Fourth Amendment to the U.S. Constitution. The D.C. Circuit disagreed with this conclusion, reversing the preliminary injunction and sending the case back to the lower court for further proceedings.

In a radical new ruling, the National Labor Relations Board (NLRB) late last week threw all American franchise and contract businesses into a state of uncertainty. In a 3-2 decision, the NLRB ruled that companies can now be held responsible for labor violations committed by franchisors and contractors. It’s hard to overstate the potential fallout from this decision.

First, the NLRB has turned the clock back 30 years in American employment practices, which have seen massive growth in flexible, more autonomous business and employment arrangements—such as franchises, contracted work, suppliers, and so on. I said as much in my initial review of the NLRB ruling.

As the 2015 Federal Register topped 50,000 pages, federal agencies issued new regulations for everything from bicycles to tuna.

On to the data:

Last week, 73 new final regulations were published in the Federal Register, after 76 the previous week.

That’s the equivalent of a new regulation every two hours and 18 minutes.

So far in 2015, 2,178 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,260 new regulations this year, which would be more than 200 fewer rules than the usual total of 3,500-plus.

Last week, 1,261 new pages were added to the Federal Register, after 1,993 pages the previous week.

Currently at 50,334 pages, the 2015 Federal Register is on pace for 75,351 pages.

E-mails obtained through Washington State’s freedom of information law reveal a behind-the-scenes campaign to use governors’ and state attorneys general offices, green pressure groups, and renewable energy companies “to advance President Obama’s climate change regulatory and treaty agenda,” according to a new report by attorney Christopher Horner prepared for the Energy and Environment Legal Institute.

As the Dodd-Frank “financial reform” celebrated its fifth anniversary this summer, just about every financial business—as well as many nonfinancial firms—have come under its thumb. This is true whether or not these companies had anything to do with the financial crisis.

Community banks and credit unions that had nothing to do with the subprime mortgage meltdown suddenly found that they couldn’t issue mortgages to creditworthy borrowers, thanks to provisions such as “qualified mortgage” and “qualified residential mortgage” mandates enforced by the Consumer Financial Protection Bureau, the unaccountable new agency created by Dodd-Frank. Stable insurance companies such as MetLife that never faltered during the crisis and served policy holders for decades suddenly found themselves...

The Daily Beast’s Justin Glawe has written an article about a North Dakota law aimed at limiting law enforcement use of unmanned aircraft systems (UAS), or drones. He claims that the law was watered down by police interests and corporate lobbyists, and that the weakened protections now authorize law enforcement’s use of non-lethal UAS-mounted weapons:

With all the concern over the militarization of police in the past year, no one noticed that the state became the first in the union to allow police to equip drones with “less than lethal” weapons. House Bill 1328 wasn’t drafted that way, but then a lobbyist representing law enforcement—tight with a booming drone industry—got his hands on it.

Today, CEI released a report on the Obama administration’s effort to pay back its union allies by way of federal labor agencies.

The National Labor Relations Board and Department of Labor are using their regulatory and adjudicatory powers to prop up labor unions that are experiencing a decades-long decline in membership. Not only do the agency actions serve as political payback to a special interest group, the rules and decisions severely disrupt the workplace and how companies do business. Further, the actions stand in stark contrast to the NLRB and DOL’s missions to protect worker rights, not benefit special interest groups like Big Labor.

And this regulatory barrage could not have come at a worse time. Currently, ...

As bureaucracy sprawls, nobody can say with complete authority exactly how many federal agencies exist.

The twice-annual Unified Agenda of Federal Deregulatory and Regulatory Actions, which compiles agency regulatory plans in the federal pipeline, listed 60 agencies in the Spring 2015 edition, a count that can vary slightly from report to report. The Fall 2014 edition that also contained many agencies’ Regulatory Plan also listed 60.

The Administrative Conference of the United States lists 115 agencies in the appendix of its “Sourcebook of United States Executive Agencies, ...

To mention just one flaw, Section 111(d) of the Clean Air Act, the CPP’s putative statutory basis, authorizes EPA to regulate “particular” “stationary sources,” not the wider marketplace, networked industry, or sector of which a source happens to be a part. Yet the CPP will compel states to revise their laws and regulations on electric dispatch policy, fuel mix policy, and demand-management policy.